The U.S. Supreme Court took a pass on the opportunity to make history this week when it failed to draw a line between a fair voting map and a map that is too partisan. Instead of setting a clear standard to protect voters from power-hungry politicians, the conservative majority looked at two egregious gerrymanders—one drawn by Democrats and the other by Republicans—and said “it’s not our job” to set limits on extreme partisan gerrymandering.
“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” Chief Justice John Roberts wrote in the 5-4 ruling in Rucho v. Common Cause.
Justice Elena Kagan’s dissent was fierce. “The partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”
The Court shirked its constitutional responsibility at great risk to our democracy. It gave state legislators in North Carolina, Maryland, and other states across the country a green light to draw maps designed to silence political dissent.
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But the movement to end gerrymandering is far from over. That’s because the U.S. Supreme Court decision does nothing to stop state-based, citizen-led efforts to give map-drawing power to the people. Activists can still use the ballot box, local legislation, and state courts to do what the U.S. Supreme Court will not—ensure voters choose their politicians, not the other way around.
The Supreme Court Is Out of Touch
Gerrymandering happens when a political party in power manipulates election districts to create an advantage in the number of seats they can win—not just for one election, but for an entire decade. Polls show that Americans hate gerrymandering. They see it as a clear conflict of interest for politicians in power to draw their own district lines, putting their own interests ahead of the people they are supposed to represent.
That’s why voters in 17 states have already reined in gerrymandering by adopting checks and balances on redistricting, including seven states that empower independent citizen redistricting commissions to draw maps. The commissions are comprised of a balanced number of Republicans, Democrats, and independent voters, and they draw maps in public forums—not behind closed doors—using community criteria.
Wins at the Ballot Box
Regardless of the U.S. Supreme Court’s decision, the power is with the people. Last year, voters in five states approved reforms to tackle gerrymandering. Their solutions were creative.
Voters created independent citizen redistricting commissions in Colorado and Michigan, tasked a nonpartisan demographer with drawing districts in Missouri, created a citizen advisory commission in Utah, and passed procedural protections against partisan dominance in Ohio.
Those wins are a springboard for energetic coalitions in several states—blue and red alike—that are preparing to use 2020 ballot measures to end gerrymandering. A campaign in Arkansas is already underway, and coalitions in other states will launch signature-gathering efforts this summer.
Still, politicians in more than half of states make it difficult (or impossible) for voters to put redistricting reform on the ballot. Activists in those states are using grassroots tactics to pass legislative solutions. Reformers’ latest win came in New Hampshire, where they convinced lawmakers to pass an independent redistricting commission bill that is now on the governor’s desk.
States like Minnesota, Pennsylvania, and Virginia are still in the fight to pass legislation to change the way districts are drawn prior to the 2021 redistricting cycle. And activists in states like New York and California are digging deeper, working to create local citizen commissions to draw city or county districts. These local redistricting reform efforts will create more responsive governments closest to home.
State Court Challenges
Perhaps most important, Thursday’s Supreme Court decision does not affect the ability of state courts to rule on partisan gerrymandering based on state constitutions. The next case to go to trial is Common Cause v. Lewis, a challenge to North Carolina’s General Assembly districts brought in state court. If the state court finds there has been partisan gerrymandering, it could require Assembly districts to be redrawn in time for the 2020 elections, which could put voters back in the driver seat to choose who represents them.
A win in North Carolina would build on a victory in Pennsylvania, where the Pennsylvania Supreme Court threw out a gerrymandered congressional map as a violation of the Pennsylvania Constitution, giving the Commonwealth its first fair map this decade.
That ruling came under a constitutional provision requiring “free and fair elections,” which the court ruled to have stronger voting rights protections than the U.S. Constitution. Thirteen states have an identical elections provision and 26 have some variation of it. Fortunately, state supreme courts have the final say in interpreting state constitutional law, so that remains an important and viable strategy—that is out of reach of the federal courts.
To be clear, Thursday’s decision was disappointing, even dangerous to our democracy. Unaccountable legislators who choose their own voters have little incentive to listen to the needs of their constituents, which leads to extreme policies that are out of touch with public opinion.
But it is also clear that We the People have a number of routes for reform—passing initiatives to create citizen commissions, advocating for state laws that rein in the partisan manipulation of redistricting, and challenging partisan gerrymanders in court. That ultimately gives us hope that when it comes to redistricting and elections, we can and will lift the voices of all people.